Australian Migration and Refugee Laws and Policy

This article discusses the Australian Migration Law and Refugees Law, Law Regulating Student Visa, Working Holiday Visa, and the discrimination faced by people from non-European countries. It also includes a case study, policy review, and suggestions for improvement.

Australian Migration and Refugee Laws and Policy
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Table of Contents
Introduction......................................................................................................................................3
Australian Migration Law and Refugees Law.................................................................................3
Law Regulating Student Visa..........................................................................................................5
Working Holiday Visa.....................................................................................................................7
Case Study.....................................................................................................................................10
Case: 1310376 [2015] RRTA 296 (6 June 2015)......................................................................10
Policy Review................................................................................................................................11
Suggestion......................................................................................................................................13
Conclusion.....................................................................................................................................15
Bibliography..................................................................................................................................16
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Introduction
Australia is a developed country, which offers higher standards of education as well as high-
class, high paid jobs. For these reasons, students from all over the world, as well as people
seeking jobs, are attracted to the prospects of the country. To accommodate them without
compromising the security of the country, Australia had introduced many laws1. These laws are
made keeping in mind the well-being of the citizens of foreign countries. Also, these laws are
upgraded keeping in mind the changing needs of the society. By properly applying them,
Australia can maintain national integrity and present itself as a secular country.
Australian Migration Law and Refugees Law
In the year 1951, the government of Australia has signed an agreement with the United Nations
to look after the status of refugees, which signifies that Australian government has the right to
develop laws and policies to manage refugees efficiently2. Moreover, it can be identified that,
after World War II, to meet the humanitarian need, the government of Australia has accepted
more than 760000 people. In late 1940s European people were seeking humanitarian assistance
and arrived in Australia. At that time, the Australian government did not have adequate laws,
regulations, and policies, related to the status of refugee people.
1 Emma, Larking,. Refugees and the myth of human rights: life outside the pale of the law. Routledge, 2016.
2 Khanh, Hoang, and Reich, Sudrishti. "Managing crime through migration law in Australia and the United States: a comparative
analysis." Comparative migration studies 5, no. 1 (2017): 12.
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Moreover, the second group of refugee was coming from the Indo-China region. The
government of Australia is responsible for protecting the basic human rights of refugees when
the asylum seekers and refugees are in Australia. In 1851, gold was discovered in Australia,
which attracted many immigrants to New South Wales and settles there. Among all the settlers,
there were over 40000 men who came from China.
According to Article 1A (2), a refugee is a person, who is afraid because of the persecution of
race, religion, nationality, political opinion and others. For this reason, they are not willing to
stay in their nation3. Moreover, the Australian Migration Act is incorporated into the Australian
domestic Law, which has created an effect on the Australian’s obligation of non-refoulement. In
section 36 (2), Migration law provides a visa for the peoples, who are not the citizen of Australia.
Simultaneously, the Migration Act, 1958 provides the rules and policies for managing all forms
of migration and visa applications in Australia. It act also includes the humanitarian assistance4.
If the intensity of the family violence has adversely affected the physical and psychological
health of the people, then it should be included in the refugee convention5. As earlier refugees
used to come to Australia by boat, so to reduce it, strict laws are made, which was named as
“stop the boats” in easy words.
There had been instances, where many people from the UK and the USA can be seen overstaying
their visa. Which means, they spend more time than which is allowed legally in Australia.
3 Goodwin-Gill, S., Guy and McAdam Jane. The refugee in international law. Oxford University Press, 2007, p. 15.
4 Grove, J., Natalie and B. Zwi, Anthony. "Our health and theirs: forced migration, othering, and public health." Social science & medicine 62,
no. 8 (2006): 1931-1942.
5 Rob T., Guerette, Migration, culture conflict, crime and terrorism. Routledge, 2016.
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Despite that, no action has been taken against them, and the government just ignores the matter6.
In contrast, when the people of Asian countries such as China, Japan, Malaysia, India overstays
their visa, strict action has been taken against them, within a very little time. Not just that, the
government of Australia bans those people from entering the country till a certain time in the
future. These shows how Australia has a preference towards the white people, and discriminate
between the people of other Asian countries.
Law Regulating Student Visa
In Australia, the Education Services for Overseas Students or ESOS Act is a framework which
includes a code of practices, to support students studying in the colleges and universities of
Australia7. The National Code of Practice for Registration Authorities and Providers of
Education and Training to Overseas Students offers protection to the overseas student. Along
with student visas, all the universities give importance to immigration and visa policy, so that
they can have the correct impact on International Education Industry8.
Students who want the best higher study opt to study in colleges and universities of developed
countries like Australia. Being a developed country, the student thinks Australia to have rules
and laws which does not discriminate among students depending on their skin color or race.
However, the matter is very different in reality. The security rules are stricter for students from
Asian countries than the ones from European countries. Even the English efficiency test which a
6 Ratna. Kapur, "Travel plans: Border crossings and the rights of transnational migrants." In Migrants and Rights, pp. 95-126. Routledge, 2017.
7 Robertson, Shanthi. "Student switchers and the regulation of residency: the interface of the individual and Australia's immigration
regime." Population, Space and Place 17, no. 1 (2011): 103-115.
8 Bashford, Alison. "At the border contagion, immigration, nation." Australian Historical Studies 33, no. 120 (2002): 344-358.
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student has to take for studying abroad is not the same for everyone. It is harder for students of
Asian countries, which reduce their chances of going abroad.
Very recently in 2012, an optional arrangement had been introduced, which is the Streamlined
Visa Processing arrangements. As it offers lower immigration risk for students of different races
of different countries, so all the international students so far had opted for it. The Australian
universities are bound to follow these rules and regulations to protect the country’s National
Security Interest9. There had been a whole lot of changes in the student’s visa between the years
2012 and 2014, made by the Australian Government’s Department of Immigration and Border
Protection (DIBP). The assessment levels of student’s visa application process had been reduced
from AL5 to AL3, which means now the students have to cross three levels instead of five. They
would require lesser money for their stay, and also needs to show how they will get fund for
supporting their study for 12 months, which earlier used to be 18 months.
9 Simon, Marginson, Nyland, Chris, Sawir, Erlenawati and Forbes-Mewett, Helen. International student security. Cambridge University Press,
2010, p. 55.
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Table 1: Migration Programme Planed Intake and Visa Granted 1996-2011
On the basis of the given statistics, there were 74000 applicants for Australian student’s visa in
the year 1996-1997, among which 73900 had been granted. And recently, in the year 2008-2009,
the number of applicants had increased to 190300, among which 171318 had been granted the
visa. The overseas students need to pass IELTS while applying for a student visa which tested
their English Language proficiency10. If a student applies for a visa through Confirmation of
Enrolment (CoE) of the institution in which they are going to get admitted for Bachelors,
Masters, Doctoral degrees or other exchange programs, then they will be assessed in a
streamlined manner. It means, they will need less evidence for visa application, regardless of
what their origin is. The visa charges had also been reduced and the working hours of the
students had been increased to 20 hours per week. There are facilities for prepaid homestay fees,
along with a post-study work visa, which allows the students to work in Australia after
10 Walters, Colin. "International students—returning their investment: Australia’s reform program for international education." The landscape for
policy makers and practitioners in tertiary education (2012): 71-82.
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completing their respective degrees11. The country had also introduced an online service named
SkillSelect where skilled workers and graduates can apply for migration through lodging an
Expression of Interest (EOI).
Working Holiday Visa
The Working Holiday Visa which was introduced in the year 1975, was only available to the
young citizens of UK, Ireland, and Canada. During that time, it was known as the “White
Australia Policy” because Australia had some historical policies. Those policies excluded all the
people from non- European countries, specifically Chinese and Indian people from entering
Australia. After the second world war, the policy had been changed, which for the first time
allowed non-British, non- white people to enter the country. In the early twentieth century, the
prime minister of Australia reinforced the policies and said that Australia should forever be that
country which will have the descendants of those British people who came there to bring peace.
Finally in the year 1973, this “white Australia policy” was legally abolished. There was a
government of Whitlam Labor, who introduced many amendments, which helped in preventing
enforcement based on the race of people who are immigrating. From 1980 to 2006, this program
was expanded, and it included many other countries, such as Taiwan, Japan, Hong Kong and
many countries of Europe12. However, all the countries have a cap of the maximum number of
visas granted per year, except the USA. This again is the favoritism of white people.
11 Weber, Leanne. Policing non-citizens. Routledge, 2013.
12 Dauvergne, Catherine. "Sovereignty, migration and the rule of law in global times." The Modern Law Review 67, no. 4 (2004): 588-615.
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To get the Australian Working Holiday Visa, the applicant must be an overseas applicant and
needs to fill some requirements. The candidate must be between the age of 18 and 30, and must
not be accompanied by any dependent children13. However, there is a different upper age limit
for people of Canada and Ireland and some other European countries. This particular law itself
creates discrimination among white people and people of other countries. After getting a
“Working Holiday Visa” of Australia, the visitor should enter Australia within 12 months of the
date of issue of the visa. And after entering Australia, that visa will let the visitor stay up to 12
months from the date of entry14. However, the visitor can leave and re-enter Australia as many
times as needed, but the number of days that the person will be spending outside Australia within
the stipulated time, will not be excluded from the count of 12 months of the person’s stay15.
However, some temporary migrant workers, who are from non- English speaking countries like
India, China, Africa, are underpaid and overworked. Also in the case of women of such
countries, there had been allegations of sexual harassment and assault. In case a person from
European countries or the USA, there are many people who had overstayed their visa, but the
government is not at all concerned about that, and most importantly they never punish them at
all. Some people are overstaying as long as 10 years or more. However, if people from Asian or
less developed countries overstays, then very strict law like banning them from Australia is
13 Shanthi, Robertson, "Time and temporary migration: The case of temporary graduate workers and working holiday makers in
Australia." Journal of Ethnic and Migration Studies 40, no. 12 (2014): 1915-1933.
14 Tan, Yan, and Laurence H. Lester. "Labour market and economic impacts of international working holiday temporary migrants to
Australia." Population, space and place 18, no. 3 (2012): 359-383.
15 McNulty, A. M., C., Egan, H Wand, and B, Donovan,. "The behaviour and sexual health of young international travellers (backpackers) in
Australia." Sexually Transmitted Infections86, no. 3 (2010): 247-250.
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applied. This is direct discrimination made based on the worker’s origin and the language they
speak, which is not English.
Table 2: Foreign Student and Temporary Business Visa Grants 2000-2009
According to the table above, it can be asserted that from 2000 to 2009, the number of overseas
students in Australia has increased threefold. Whereas, in case of working holiday, 36900
applicants had applied for a visa in the year 2000-2001, while 1012800 applicants had enrolled in
the year 2008-2009.
If someone wants to extend their working holiday visa and be a permanent resident of Australia,
then the white people will always get preference, due to their fair skin color and English is their
mother tongue. Whereas the people from Asian countries like India and China are not made
permanent residents till now. This is again discrimination among workers.
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Case Study
Case: 1310376 [2015] RRTA 296 (6 June 2015)
The applicate of this case claimed that he is the citizen of Afghanistan and he was applied for a
visa in November 2012. However, the delegates were refused to grant the visa in July 2013. The
applicant also asserted that he was born in the village of Afghanistan and he has a small family,
who were live in Peshawar, Pakistan because their family members were not safe in
Afghanistan16. Moreover, the applicant claimed that his father was purchased land in
Afghanistan, but the government of Afghanistan has pressured them to donate this land for
building a girl’s school. His father was willing to donate his land to build a girls’ school. For this
reason, his father went to donate his land to the government; on his way, the Taliban killed him.
10 days after, the applicant received a letter from the community of Taliban that they are
responsible for his father death. Because of the death of his father, he was requested to sign
another document for hand over the land to build the girls’ school. After signing the document,
the applicant found six Taliban at his place and force him to get into the car. The applicant also
claimed that he was detained by the Taliban approx. 8 months. One evening he escaped from the
jail. After escaping the detention, with the help of Pakistan police, he was able to stay approx.
Seven months with his father’s friend house. With the help of this man, the applicant can get in
Australia. After arriving in Australia, the applicant claimed that his wife and his children return
to Pakistan. Hence, the situation was not safe for themselves in Afghanistan17. Moreover, the
16 Alexander, Reilly, Alexander. "Low-cost labour or cultural exchange? Reforming the Working Holiday visa programme." The Economic and
Labour Relations Review 26, no. 3 (2015): 474-489.
17 Kim, Rubenstein,. "Australian citizenship law in context." (2002), p. 86.
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applicant also claimed that the government of Afghanistan were not able to protect him and his
family, the network of Taliban is organized and advanced.
The delegates of this case were found that the applicant was unable to show the recent country
information that provides the Taliban are targeting those who are involving himself in the girl’s
education. From the country information, it can be identified that 5000 girls were enrolled in the
school when the Taliban were not stayed in Afghanistan, while after the Taliban attack; it was
found that 2.4 million girls were enrolled in the school18. From the information above, the
delegates were found that there is no relationship that the returnees have suffered any harm
because of their support in the girl’s education. Also, the delegates were concluded that the
applicant should relocate to Kabul to avoid the consequences of the harm, which is
comparatively more reasonable for him and his family.
Policy Review
From the discussion above, it can be asserted that since 1940s asylum seekers were seeking
humanitarian assistance, for this reason, they arrived in Australia. A refugee is a person, who is
not willing to stay in his motherland because of certain persecution against race, nationality,
religion, skin color, member of specific social groups, political opinion, and others19.
Simultaneously, the ESOS Act in Australia is the framework, which helps the international
student to continue their study in Australia. The basic policies, code, and conducts must abide by
the Colleges and universities of Australia for offering education services towards international
18 Colin, Harvey. "Time for reform? Refugees, asylum-seekers, and protection under International Human Rights Law." Refugee Survey
Quarterly 34, no. 1 (2015): 43-60.
19 Nick, Clarke,. "Detailing transnational lives of the middle: British working holiday makers in Australia." Journal of Ethnic and Migration
studies 31, no. 2 (2005): 307-322.
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students. It is one of the prime responsibility of the overseas students that they should have a
valid student visa to study at the Australian university20.
The government of Australia has also introduced the Working Holiday Visa in the year 1975 for
the young citizens of Ireland, UK, and Canada. This visa programme was expanded and included
so many countries, i.e., Japan, Hong Kong, Taiwan, and others. In this category, the age of the
applicant should be between 19 and 30, and the upper limit for the age is different in different
countries21.
The migration law of Australia is greatly influenced by the age-old “White Australian Policy.”
That is the reason, the government of the country still shows preference towards white people,
who mainly are of the origin of UK, USA, and other European countries. This policy was made
to retain the purity among the Australians. However, around a century has passed, and the world
has changed and become more tolerant of race, language, etc. Still, when students from some
Asian countries such as China, India applies for a student visa, they are discriminated due to their
language, by giving harder questions in the IELTS test. When after finishing their studies, the
student wants to stay in Australia on a working holiday visa, then to the policy becomes the
barrier.
Many refugees or workers went to Australia on “working holiday visa,” but due to convenience
and better opportunities overstayed their visa. In those cases, they had to face extreme
punishments like the cancellation of their visa to Australia forever. Also due to not speaking
20 To, Your Guide. "Working in Australia." (1991).
21 Kumiko, Kawashima,. "Japanese working holiday makers in Australia and their relationship to the Japanese labour market: Before and
after." Asian studies review 34, no. 3 (2010): 267-286.
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English, the workers are taken advantage of by making them overwork and keeping them
underpaid or providing homes which have no facilities. Whereas in the case of the females, they
are sexually harassed or exploited. Simultaneously, if a person from the European countries or
USA overstays their visa, the government stays mum about it. Also, no legal action is taken
against them for breaking the law, and they overstay in Australia for as long as a decade.
Suggestions
In the recent past, there had been some improvements in the Australian Migration Law and
Refugees Law, Law Regulating Student Visa and Working Holiday Visa of Australia. The laws
have become more flexible, allowing the immigrants to get the access of those visas easier than
how earlier it used to be. The amount of money spent too had been reduced as well as the time
for the stay had been increased22. However, if the laws are analyzed closely, quite some
loopholes can be found in them. The people who get affected are of the low-income status, and
maybe the citizens of non-English speaking countries. Also, those may be the people who have
come to Australia after getting a job but are not able to pay the return fare.
In cases where the person or a family is migrating permanently to Australia, there are stricter
laws. As this is done keeping in mind the security of the whole country, so the process should go
on. However, it takes a few months to get such kinds of visa, as different kinds of verification
take place23. It would be better for all the people if this particular process can be made faster and
takes up less time. Other than that, there must not be any problem regarding the immigration of
22 Mary, Crock, and Berg, L. A. Immigration, refugees and forced migration: law, policy and practice in Australia. Federation Press, 2011, p. 81.
23 Joo-Cheong, Tham, Campbell, Iain, and Boese, Martina. "Why is Labour Protection for Temporary Migrant Workers so Fraught? A
Perspective from Australia." (2016).
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people of the Eastern countries, specifically Asian countries to get a visa or to stay in the
country.
The person who is applying for a visa to study in Australia can be given a little more extension in
their working hours, in cases where the student may be facing a problem in gathering the fund
for study. Australia can have a go-to center for international students who may be facing any
discrimination regarding their race, skin color or place of origin. This will give them a feeling of
safety in Australia. However, most of the problems can be seen in the people who had visited
Australia for work. Due to being from a non-English speaking country, and their inability to
speak and understand English, they are ill-treated24. They are sometimes overworked, underpaid
or both at the same time. They are forced to do dangerous works without proper safety gear and
sometimes are given accommodations, which are very substandard.
Conclusion
Grounded on the different aspects, it can be concluded that, for a developed country like
Australia, there should be no discrimination among the people who come to the country to study
or in search of a job. Hence, certain Laws and policies of Migration are made, the refugees and
overseas students must obey that. These Laws offers protection to the immigrants as well as the
citizens of the country and helps the immigrants to get all the facilities systematically.
24 Joo-Cheong, Tham, and Fudge, Judy. "Unsavoury Employer Practices: Understanding Temporary Migrant Work in the Australian Food
Services Sector." International Journal of Comparative Labour Law and Industrial Relations (Forthcoming) (2018).
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Bibliography
Bashford, Alison. "At the border contagion, immigration, nation." Australian Historical
Studies 33, no. 120 (2002): 344-358.
Clarke, Nick. "Detailing transnational lives of the middle: British working holiday makers in
Australia." Journal of Ethnic and Migration studies 31, no. 2 (2005): 307-322.
Crock, Mary, and L. A. Berg. Immigration, refugees and forced migration: law, policy and
practice in Australia. Federation Press, 2011.
Dauvergne, Catherine. "Sovereignty, migration and the rule of law in global times." The Modern
Law Review 67, no. 4 (2004): 588-615.
Goodwin-Gill, Guy S., and Jane McAdam. The refugee in international law. Oxford University
Press, 2007.
Grove, Natalie J., and Anthony B. Zwi. "Our health and theirs: forced migration, othering, and
public health." Social science & medicine 62, no. 8 (2006): 1931-1942.
Guerette, Rob T. Migration, culture conflict, crime and terrorism. Routledge, 2016.
Harvey, Colin. "Time for reform? Refugees, asylum-seekers, and protection under International
Human Rights Law." Refugee Survey Quarterly 34, no. 1 (2015): 43-60.
Hoang, Khanh, and Sudrishti Reich. "Managing crime through migration law in Australia and
the United States: a comparative analysis." Comparative migration studies 5, no. 1 (2017): 12.
Page | 16

Kapur, Ratna. "Travel plans: Border crossings and the rights of transnational migrants."
In Migrants and Rights, pp. 95-126. Routledge, 2017.
Kawashima, Kumiko. "Japanese working holiday makers in Australia and their relationship to
the Japanese labour market: Before and after." Asian studies review 34, no. 3 (2010): 267-286.
Larking, Emma. Refugees and the myth of human rights: life outside the pale of the law.
Routledge, 2016.
Marginson, Simon, Chris Nyland, Erlenawati Sawir, and Helen Forbes-Mewett. International
student security. Cambridge University Press, 2010.
McNulty, A. M., C. Egan, H. Wand, and B. Donovan. "The behaviour and sexual health of
young international travellers (backpackers) in Australia." Sexually Transmitted Infections86, no.
3 (2010): 247-250.
Pugliese, Joseph. "The incommensurability of law to justice: Refugees and Australia’s temporary
protection visa." Law & Literature 16, no. 3 (2004): 285-311.
Reilly, Alexander. "Low-cost labour or cultural exchange? Reforming the Working Holiday visa
programme." The Economic and Labour Relations Review 26, no. 3 (2015): 474-489.
Robertson, Shanthi. "Student switchers and the regulation of residency: the interface of the
individual and Australia's immigration regime." Population, Space and Place 17, no. 1 (2011):
103-115.
Robertson, Shanthi. "Time and temporary migration: The case of temporary graduate workers
and working holiday makers in Australia." Journal of Ethnic and Migration Studies 40, no. 12
(2014): 1915-1933.
Page | 17

Rubenstein, Kim. "Australian citizenship law in context." (2002).
Tan, Yan, and Laurence H. Lester. "Labour market and economic impacts of international
working holiday temporary migrants to Australia." Population, space and place 18, no. 3 (2012):
359-383.
Tham, Joo-Cheong, and Judy Fudge. "Unsavoury Employer Practices: Understanding Temporary
Migrant Work in the Australian Food Services Sector." International Journal of Comparative
Labour Law and Industrial Relations (Forthcoming) (2018).
Tham, Joo-Cheong, Iain Campbell, and Martina Boese. "Why is Labour Protection for
Temporary Migrant Workers so Fraught? A Perspective from Australia." (2016).
To, Your Guide. "Working in Australia." (1991).
Walters, Colin. "International students—returning their investment: Australia’s reform program
for international education." The landscape for policy makers and practitioners in tertiary
education (2012): 71-82.
Weber, Leanne. Policing non-citizens. Routledge, 2013.
Page | 18